Monday, April 9, 2007
Results-Based Expert Compensation?
Today's New Jersey Law Journal contains a story that's troubling for those of us who haven't already become entirely cynical about expert testimony in tort cases. The article -- Court Rebuffs Lawyer's Stab at Cutting Expert's Fee in Lost Case (subscription) -- describes the case of Beilin v. Nagel, Rice & Mazie LLP, in which the court required a plaintiff's law firm to pay its medical expert's full fee in a medical malpractice case even though the plaintiff lost the underlying case. That seems pretty straightforward and unobjectionable. The part I find troubling is the casualness with which the lawyer apparently assumed that an expert witness should charge different amounts based on the outcome of the case:
"We took a blood bath in this case," Nagel continued. "And what I do with experts over the course [of] almost 30 years is that where you take a huge loss, experts will virtually always work with you." ...
Nagel says his firm does not seek discounts from experts on losing verdicts. Rather, expert witnesses who have an ongoing relationship with his firm tend, of their own volition, to increase their bills in the event of a victory and to cut them after a defeat.
Has the legal profession so fully accepted a norm of partisan "experts" that lawyers assume expert witnesses operate on a type of contingent fee? Wouldn't such an expectation, if disclosed, significantly undermine the expert's credibility?